who is responsible for fraternity related injuries on

Journal of Contemporary Health Law & Policy (1985-2015) Journal of Contemporary Health Law & Policy (1985-2015)

Volume 17 Issue 2 Article 12

2001

Who Is Responsible for Fraternity Related Injuries on American Who Is Responsible for Fraternity Related Injuries on American

College Campuses? College Campuses?

Kerri Mumford

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Recommended Citation Recommended Citation Kerri Mumford, Who Is Responsible for Fraternity Related Injuries on American College Campuses?, 17 J. Contemp. Health L. & Pol'y 737 (2001). Available at: https://scholarship.law.edu/jchlp/vol17/iss2/12

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WHO IS RESPONSIBLE FOR FRATERNITYRELATED INJURIES ON

AMERICAN COLLEGE CAMPUSES?

Kerri Mumford*

INTRODUCTION

The stereotypical image of a fraternity depicts a scene from AnimalHouse:' a group of men running around drinking and causing chaos.Although Animal House was filmed in the 1970s, this image of fraternitiesstill exists today. Over the past two decades, as the concern over hazing,'binge drinking, 3 violence and sexual assault4 on college campuses hasrisen, fraternities have been the subject of increased litigation. Litigationagainst fraternities has resulted in enormous civil damages paid to injuredplaintiffs,5 often involving multiple parties including the local chapter, thenational chapter, the college6 and the individual defendant fraternitymembers who cause the injury.

* B.S. High Point University, 1996; J.D. Candidate 2001, Catholic University

of America, Columbus School of Law. The author would like to thank her familyand friends for all of their love and support.

1. NATIONAL LAMPOON'S ANIMAL HOUSE (Universal 1978).2. For varying definitions of hazing, see Gregory E. Rutledge, Hell Hath No

Fury Like a Pledge Scorned... And Injured: Hazing Litigation in U.S. Colleges

and Universities, 25 J.C. & U.L. 361, 363-365 (1998).3. See Binge Drinking Still of Concern on Campus, ALLENTOWN MORNING

CALL, October 4, 1998, at BO. Harvard School of Public Health Survey reportedthat binge drinking on college campuses had only decreased from 44.1% in 1993to 42.7% in 1997. Id.

4. See Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968, 973-974 (Ind. 1999) "[T]he group most likely to commit gang rape on the collegecampus was the fraternity." Id.

5. See Whitlock v. Univ. of Denver, 712 P.2d 1072 (Col. 1987), rev'd 744 P.2d54 (Col. 1987). Jury awarded damages of $7,300,000 when a fraternity brother wasinjured because he failed to execute a flip on a trampoline owned by the fraternityand located on campus, rendering him a quadriplegic. Id. Bradshaw v. Rawlings,612 F.2d 135, 137 (3d 1978). The jury returned verdict against defendants inamount of $1,108,067. Id.

6. For purposes of this paper, college and university are used interchangeablyand mean any secondary educational institution.

738 Journal of Contemporary Health Law and Policy [Vol. 17:737

It is time for both national and local fraternity chapters, as well as thecolleges, to take a role in preventing these injuries. When these measuresfail, all three of these institutions should bear the responsibility. Thecourts should recognize the current relationship between universities andstudents. Until now, universities have successfully avoided liability forfraternity-related injuries based on the "no duty" rule, following thedemise of in loco parentis doctrine for universities.7 The "no duty" rulestates that the relationship between the college and the student is simplyone that provides education only. The university is under no obligation orduty to control or govern the students' behavior.8

Today's college/student relationship is certainly unique. Although thepurpose of college is primarily education, colleges take an active role instudent life and activities. Today, colleges typically govern almost anyaspect of a student's life.9 Once the college has taken this role, there is noreason why it should escape liability based on the fear that holding auniversity liable will place a college in a custodial relationship with itsstudents for purposes of imposing a duty.'0 In the words of the court inFurek, "university supervision of potentially dangerous student activitiesis not fundamentally at odds with the nature of the parties' relationship,particularly if such supervision advances the health and safety of at leastsome students."'"

There is no reason for courts to persist in allowing colleges to escapeliability on the outdated notion that the relationship between theuniversity is simply student/educator. Courts continually rely on thisanalysis of the relationship and the concern that holding the college liablewill return it to the strict liability standard of in loco parentis as a basis forfinding no liability. Rather, the common law liability theories that courtsapply to the national fraternities should also be applied to colleges, whichexercise equal, if not greater control over the fraternity members.

7. Jenna MacLachlan, Dangerous Traditions: Hazing Rituals on Campus andUniversity Liability, 26 J.C.& U.L. 511, 512 (2000).

8. Id.9. Universities typically discipline students and local fraternity chapters for

fraternity-related injuries. See UGA Students Kick out of Frat for Hazing,ATLANTA J. & ATLANTA CONST., Oct. 1, 1999 at B6; UGA Suspends Students,Bars Fraternity in Hazings, FLA. TIMES UNION (Jacksonville), Oct. 9, 1999 at B8;Steve Arney, ISU Fraternity Loses Status Over Hazing, PANTAGRAPH, Oct. 9, 1999at A3; Robert Kelly, U. of Illinois Fraternity Is Suspended, ST. Louis PosT, Oct.20, 1999 at B1.

10. Bradshaw v. Rawlings, 612 F.2d 135, 140 (3d Cir. 1979); MacLachlan,supra note 7, at 518.

11. Furek v. Univ. of Del., 594 A.2d 506, 518 (Del. 1991).

Fraternity Related Injuries

This Comment examines fraternity-related litigation and the entities• 12

that should be held responsible. Parts I and II respectively address thebackground and significance of fraternity-related litigation. Specifically,Part II traces the history of university liability for student injuries. PartIII examines differing applications of common law duties that courts andplaintiffs may apply to decide the issue of liability. These theories couldbe utilized to hold colleges liable for a fraternity member's tortiousactions resulting in an injury." Courts increasingly find national and localfraternity chapters liable for such injuries, yet continue to holduniversities immune even when they exercise control of the fraternity.Part IV examines the theories used to hold the national fraternity liablefor fraternity-related injuries. This section compares the nationalfraternity and the university. Specifically, it provides the theories that areused to hold the national fraternity liable for fraternity-related injuriesthat are equally, if not more, applicable to the university.

I. BACKGROUND

A. The University

Until the mid 1960s, the university did not have a legal duty to protectthe student's safety or rights. 4 Courts found analogous immunities givento other institutions and applied them to the university creating a de factoimmunity. The courts applied a variety of theories including "[w]hereappropriate, ... immunit[y] as a parent (in loco parentis), a charity, or agovernment; or protected like a "social host" would be regarding alcoholuse, or shielded by rules of proximate causation or by all-or-nothingaffirmative defenses.' 16

Until the late 1970s, the university remained in loco parentis to itsstudents, 7 exercising "delegated parental authority with a concomitant

12. For purposes of this paper, the term fraternity also includes sororities.13. This paper primarily relies on responses to motions for summary

judgment. The theories of liability determine whether a legal duty exists.Whether or not the parties breached that duty is a question of fact for the jury.

14. Peter F. Lake, The Rise of Duty and the Fall of In Loco Parentis andOther Protective Tort Doctrines in Higher Education Law, 64 Mo. L. REV. 1, 3(1999).

15. Id.

16. Id.17. Bradshaw v. Rawlings, 612 F.2d 135, 140 (3d Cir. 1979); MacLachlan,

supra note 7, at 518.

2001]


duty of broad protection."' 8 The university controlled the physical andmoral welfare of its students.'9 The university could control any aspect ofthe student life as long as the regulations were "not inconsistent with thelaw.,,2

In 1979, the seminal case of Bradshaw v. Rawlings2 put an end to inloco parentis in this context.22 This decision came at a time when studentswere demanding rights and autonomy during the Civil RightsMovement.23 The often-quoted case of Bradshaw illustrates the changingrelationship between universities and students:

Our beginning point is a recognition that the modern Americancollege is not an insurer of the safety of its students. [T]heauthoritarian role of today's college administrators, andfaculties have been required to yield to the expanding rights andprivileges of their students... College students today are nolonger minors; they are now regarded as adults in almost everyphase of community life. As a result of [societal changes],eighteen year old students are now identified with an expansivebundle of individual and societal interests and possess discreterights not held by college students from decades past. Therewas a time when college administrators and faculties assumed arole in loco parentis. Students were committed to their chargebecause students were considered minors .... Adult studentsnow demand and receive expanded rights of privacy in their• 24

college life.

The court in Bradshaw relied on social policy holding that the imposition

18. Furek v. Univ. of Del., 594 A.2d 506, 516 (Del. 1991).19. Gott v. Berea Coll., 161 S.W. 204 (Ky. 1913).20. Id. at 206.21. 612 F.2d. 135, 139 (3d Cir. 1979).22. The legal scholar Blackstone articulated the term in loco parentis, which

means[t]he father may also delegate part of his parental authority, during hislife, to the tutor or schoolmaster, of his child; who is then 'in locoparentis' and has such a portion of the power of the parent committed tohis charge, viz. That of restraint and correction as may be necessary toanswer the purposes for which he is employed.

Robert D. Bickel & Peter F. Lake, Reconceptualizing the University's Duty toProvide A Safe Learning Environment. A Criticism of the Doctrine of In LocoParentis and the Restatement (Second) of Torts, 20 J.C. & U.L. 261, 263-264 (1994).

23. See Robert D. Bickel & Peter F. Lake, The Emergence of New Paradigmsin Student-University Relations: From "In Loco Parentis" to Bystander toFacilitator, 23 J.C. & U.L. 755, 760 (1997); Lake, supra note 14.

24. Bradshaw, 612 F.2d at 138.


of a duty to supervise student activities would be unrealistic andimpossible to perform because it would return the university to acustodial relationship over adult students. 25

This shifted the tone of university liability from strict liability to noliability. Although it gave students autonomy and rights that were notpreviously recognized, this new "no duty" doctrine incidentally andunfortunately resulted in a trend of complete university absolution.

With a few exceptions, most courts presently follow the somewhatoutdated notions stated in Bradshaw. For example, in Beach v. Universityof Utah," the Supreme Court of Utah relied on Bradshaw stating that theUniversity of Utah had no duty to protect an injured plaintiff. Theplaintiff who became intoxicated on a school-sponsored trip fell down acliff. The plaintiff sued the University alleging that it had an affirmativeduty of protection based on the special relationship between theuniversity and plaintiff." Beach testified that Cuellar, a faculty memberwho was chaperoning the trip, was aware of her propensity to becomedisoriented when drinking. He had previously witnessed when plaintifffell asleep in the bushes after drinking.29 The Utah Supreme Courtdisagreed, holding as a matter of law that even though the trip was aschool sponsored event and that Cuellar had knowledge of Beach'sbehavior, Beach was an adult responsible for her own behavior. 3° Relyingon Bradshaw, the court in Beach stated "[a] realistic assessment of therelationship between the parties precludes our finding that a specialrelationship existed between the University and Beach or other adultstudents."3

Courts continually rely on Bradshaw for the basis that the universitieshave no duty to protect students. The social policy relied on by the courtin Bradshaw is no longer applicable in today's university/studentrelationship. Once the university takes an affirmative step to controlstudent activity and knows that its efforts are failing, the university shouldbe held liable for any resulting injuries.

25. Id. at 138-39.26. 726 P.2d. 413 (Utah 1986).27. Id. at 415.28. Id.29. Id. at 416.30. Id.31. Id. at 419.

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Journal of Contemporary Health Law and Policy [Vol. 17:737

B. The Fraternity

In the 1980s and the 1990s, fraternity membership increaseddramatically." With this increase in membership came an increase infraternity-related injuries resulting in the skyrocketing of litigation.33 Thefirst fraternity-related injury civil case reported was in 1979.14 As a resultof increased publicity of fraternity-related injuries and lawsuits, theAnimal House type fraternity behavior came under close scrutiny." Thisled to large verdicts for plaintiffs injured in hazing and alcohol related• • • 36

injuries. Although courts have held national fraternities liable forinjuries in local chapters under theories of agency37 and general duty,3 8

courts have been reluctant to extend these theories to the colleges wherethe injuries took place.

32. Rutledge, supra note 2, at 365-66. Approximately one million studentswere members of the Greek system each decade. Id.; Michael Kuzmich, In VinoMortuus: Fraternal Hazing and Alcohol-Related Deaths, 31 MCGEORGE L. REV.1087 (2000); Lewis Lord, From Party Hearty to Party Hardly? The Greek System,Mired in a Rush Recession, Gives Grades and Good Deeds the College Try, U.S.NEWS & WORLD REPORT, Sept. 1, 1997 at 96-97; Susan Tifft, Waging War on theGreek: Fraternities and Sororities Are Being Forced to Clean Up Their Acts, TIME,Apr. 16, 1990. In the 1970s fraternity membership was at a low point with only179,000 nationwide members but by 1990 the number had increased to 400,000members. Id.

33. See Fasset v. Poch, 625 F. Supp. 324 (E.D. Pa. 1985); Alpha Zeta Chapterof Pi Kappa Alpha Fraternity v. Sullivan, 740 S.W.2d 127 (Ark. 1987); Univ. ofDenver v. Whitlock, 744 P.2d 54 (Col. 1987); Marshall v. Univ. of Delaware, 1986WL 11566 (Del. Super. Oct. 8, 1986); Rabel v. Ill. Wesleyan Univ., 514 N.E.2d 552(I11. 1987); Campbell v. Bd. Of Trs. of Wabash Coil., 495 N.E.2d 227 (Ind. 1986);Andres v. Alpha Kappa Lamda Fraternity, 730 S.W.2d 547 (Mo. 1987); Ramsay v.Kenyon Coil., 1985 WL 7319 (Ohio App. 5 Dist. Oct. 31, 1985); Ballou v. SigmaNu Gen. Fraternity, 352 S.E.2d 488 (S.C. 1986).

34. Davies v. Butler, 602 P.2d 605 (Nev. 1978).35. MacLachlan, supra note 7, at 518, 530-31.36. See Whitlock v. Univ. of Denver, 712 P.2d 1072 (Col. 1987), rev'd 744 P.2d

54 (Col. 1987). Jury awarded damages of $7,300,000.00 when a fraternity brotherwas injured because he failed to execute a flip on a trampoline owned by thefraternity and located on campus, rendering him a quadriplegic. Id. Bradshaw v.Rawlings, 612 F.2d 135, 137 (3d 1978). Jury returned verdict against defendants inamount of $1,108,067. Id.

37. Ballou, 352 S.E.3d at 496.38. Morrison v. Kappa Alpha Psi Fraternity, 738 So.2d 1105, 1119 (La. Ct.

App. 1999).


II. WHY FRATERNITIES ARE OFTEN INVOLVED IN LITIGATION

Although fraternities are founded on the idea of brotherhood, they arestereotyped as a group of individuals whose main goal is to party.3 9 Thereare sixty-seven nationally recognized fraternities4° in the United Stateswith over 400,000 active members 4' and over 4.5 million alumni.4

' Thestereotypical image of fraternities includes students participating in bingedrinking, partying, hazing, drug use and sexual freedom. Unfortunately,whether or not this behavior is typical when it does occur, it results in anumber of alcohol-related deaths, sexual assaults and hazing-relatedinjuries.43

Fraternity behavior that results in injuries has succumbed to closepublic scrutiny." There has been a public outcry to decrease the excessivedrinking, hazing and debauchery that occur on college campuses.45 Parentsand college administrations are concerned about the injuries that resultfrom this behavior.46 This outcry has led courts increasingly to holdfraternities liable for fraternity-related injuries. As one commentator hasnoted, "[S]ubpoenas and depositions may be replacing beer cans and

39. Michael Kuzmich, In Vino Mortuus: Fraternal Hazing and Alcohol-Related Deaths, 31 MCGEORGE L. REV. 1087, 1092 (2000). Dr. Weschlerconducted a study that found that "more than eighty percent of fraternitymembers qualified as binge drinkers." Id.

40. National Interfraternity Counsel, at http://www.mciindy.org (last visitedJan. 31, 2001.)

41. Nina Bernstein, Behind Some Fraternity Walls, Brothers in Crime, N.Y.TIMES, May 6, 1996, at Al.

42. THE MANUAL OF AMERICAN COLLEGE FRATERNITIES, BAIRD'S MANUAL

FOUND. at 1-25 (1991).43. Christopher Pierson, Liquor and Lawsuits: Forty Years of Litigation Over

Alcohol On Campus, 142 EDUC. L. REP. 609 (2000). "The proportion of reportedlitigation arising from students' drinking at fraternities and sororities hasincreased greatly in recent decades." Id. at 615, 617; Rutledge, supra note 2, at365. Rutledge states that there was an "explosion of litigation." Id.

44. Kuzmich, supra note 40, at 1089-92 (stating that the biggest concerns oncollege campuses today are binge drinking and hazing committed by fraternitymembers); Pierson, supra note 44, at 618 (Plaintiffs increasingly seek recovery forincidents sponsored by fraternities and sororities).

45. P.M. Hirshberg, The College's Emerging Duty to Supervise Students: InLoco Parentis in the 1990's, 46 WASH. U. J. URB. & CONTEMP. L. 189 (1994);Robert D. Bickel & Peter E. Lake, THE RIGHTS AND RESPONSIBiLITIES OF THEMODERN UNIVERSITY: WHO ASSUMES THE RISKS OF COLLEGE LIFE (1999).

46. Id.

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pledge paddles as icons on fraternity row. ' '47 Although judgments againstfraternities are becoming commonplace, courts continue to allowuniversities to escape liability for injuries caused by fraternity membersbased on the theories of Bradshaw. Universities avoid liability, despitethe fact that they take an active role in regulating fraternity members

48including curbing alcohol abuse. This is part of an overall movement bycolleges to stop alcohol abuse by students attending the university.However, universities are moving a step further by taking activeinvolvement through the regulation of fraternities by forcing them tobecome co-ed, requiring them to be alcohol free4 9 or preventing thefraternities from associating on campus.' ° Even though the universitiestake an active role in regulating fraternities and their members, themajority of the courts maintain that the universities' actions do notconstitute an assumed duty to protect students from fraternity-relatedinjuries.

III. THEORIES OF LIABILITY TO HOLD THE UNIVERSITY LIABLE

Colleges and universities are recognized as educational institutions"with the purpose of fostering the maturation of students.53 As stated inPart II, in the past, colleges stood in loco parentis to the students. Thisdoctrine was put to rest with the decision of Bradshaw. Bradshaw'sdecision was based largely in part on the new student/college relationship.The Court believed that if the adult students were to receive autonomyand rights, the imposition of a duty to supervise student activities would

47. Gary Taylor, Increasingly Vulnerable: Fraternities Face (Legal) Facts, TheNAT'L L.J.; Dec. 31, 1990 at 26.

48. Adam Cohen, Battle of the Binge, A Fatal Night of Boozing at ALouisiana University Stirs Up The Debate Over the Drinking Culture in America'sColleges, Sept. 8, 1997, TIME, available at 1997 WL 13375745; Carolyn Kleiner,Schools Turn Off the Tap, Some Have Banned Alcohol Entirely; Others AreDrying Out Fraternities, Sept. 30, 1999, U.S. NEWS & WORLD REP., available at1999 WL 9433322; Kathleen Parrish, Binge Drinking Still Of Concern On Campus,The Problem Has Dipped Slightly Since 1993. Colleges Say They Are Doing More,Oct. 4,1998 ALLENTOWN MORNING CALL at B01.

49. Michael W. Gosk, From Animal House to No House: Legal Rights of theBanned University, 28 CONN. L. REV. 167, 168 (1995).

50. For an interesting examination of fraternities constitutional right tofreedom of association, See generally id.

51. Lloyd v. Alpha Phi Alpha Fraternity, 1999 WL 47153 (N.D.N.Y. 1999);Millard v. Osborne, 611 A.2d 715 (1992).

52. See Beach v. Univ. of Utah, 726 P.2d 413, 419 (Utah 1986).53. See Univ. of Denver v. Whitlock, 744 P.2d 54 (Col. 1987).


be unrealistic and impossible to perform because it would subject theuniversity to a custodial relationship over adult students.

The Bradshaw reasoning no longer reflects the currentuniversity/student relationship. The university controls many aspects ofthe student's life. It is typical for the university to have policies andguidelines to prevent hazing and underage drinking." The university cannormally discipline students who violate its policies including expulsion.This control includes controlling fraternities." Once the university hastaken active steps to exercise control, usually in the attempt to preventinjury, it should no longer be shielded from responsibility.

There are a number of theories that a plaintiff injured in a fraternity-related incident may utilize to hold the university liable. As this sectionwill reflect, most jurisdictions reject these theories on the outdated beliefthat Bradshaw is still controlling.

Plaintiffs may try to hold universities liable under a number ofnegligence theories. The first theory holds or posits simply that auniversity has a general duty to its students based on their relationship.The second theory is the uncommon theory of social policy. Theuniversity may also be held liable on the basis of social host liability if theplaintiff's injury was caused by a fraternity member who becameintoxicated on university property. Third, the plaintiff may recover basedon the duty of the university as landowner to those on its premise, knownas premises liability.

When analyzing university liability, courts are faced with the difficultyof defining the legal relationship between the student and the university.Courts must balance the tension between two distinct doctrines thatsurround the liability of universities. Courts grapple with balancing thedemise of in loco parentis and a general notion of social policy andfairness, which requires more than de facto immunity. Courts arereluctant to reject the theory expounded in Bradshaw that colleges are foreducational purposes and are not insurers of the students safety.

This theory does not reflect the current state of university/student

54. Bradshaw v. Rawlings, 612 F.2d 135, 138-39 (3d Cir. 1979).55. UGA Suspends Students, supra note 9; Steve Arney, supra note 9; Robert

Kelly, supra note 9.56. See Marshall v. Univ. of Del., 1986 WL 11566 at *5 (Del. 1986) ("Most

men would agree that fraternity members, because of the kinds of conduct theytend to engage in (hazing and holding large open parties for example) and becauseof their youth, need to be controlled."); UGA Students Kick out of Frat forHazing, supra note 9; UGA Suspends Students, supra note 9; Steve Arney, supranote 9.

20011 745 •


relationships. Courts cannot be blind to the fact that there is more to theuniversity/student relationship than education. 7 Students both living onand off campus are subject to all the rules and regulations that the college

imposes on its students. 8 The university/student relationship is such thatit should include a duty of reasonable care to protect the student fromforeseeable, dangerous or negligent acts of third persons.

Although the doctrine of in loco parentis has been rejected, there are a

few instances where a court has found a special relationship between theuniversity and its students. 9 The landmark case in this area is Furek v.

University of Delaware,6 which is examined in detail below.Unfortunately, courts are reluctant to follow the reasoning in Furek.Other courts continually find that there is no duty for the college toprotect students injured by fraternity members. Some courts rely on thetheory that a university does not have a duty to supervise studentactivities6' even though it sanctions such activities. 6

' Fortunately, other

courts have concluded that because of the special relationship betweenthe student and the university, the university must use reasonable care to

63prevent foreseeable injury from third persons.

57. See Furek v. Univ. of Del., 594 A.2d 506, 516 (Del. 1991).The university-student relationship is certainly unique. While its primaryfunction is to foster intellectual development through an academiccurriculum, the institution is involved in all aspects of the student life.Through its providing of food, housing, security, and a range ofextracurricular activities the modern university provides a setting inwhich every aspect of the student life is, to some degree, universityguided.... Despite the recognition of adulthood, universities continue tomake an effort to regulate student life and the courts have utilizeddiverse theories in attempting to fix the extent of the university's residualduty.

Id.; see Mullins v. Pine Manor Coll., 449 N.E.2d 331 (Mass. 1983).58. Furek, 594 A.2d at 516.59. See generally, Michael R. Flaherty, Tort Liability of College or University

for Injury Suffered by Student As a Result of Own or Fellow Student's Intoxication,62 A.L.R.4th (1988).

60. 594 A.2d 506 (Del. 1991).61. See id.; Beach v. Univ. of Utah, 726 P.2d 413, 419 (Utah 1986); Univ. of

Denver v. Whitlock, 744 P.2d 54 (1987).62. Marshall v. Univ. of Del., 633 A.2d 370 (Del. 1993); Univ. of Denver, 744

P.2d at 54; Rabel v. I1l. Wesleyan Univ., 514 N.E.2d 552 (I11. 1987); Bradshaw v.Rawlings, 612 F.2d 135 (3d Cir. 1979).

63. See Zavala v. Regents of the Univ., 125 Cal. App.3d 646; Furek, 594 A.2dat 519.


A. Liability Under The Theory of Assumed Duty/Duty From SpecialRelationship

Furek is the first major case to hold a university liable for an injury to astudent caused by a third party. The court in Furek focused on theliability theories found in the Restatement (Second) of Torts §323 and oncommon law clearly rejecting Bradshaw and its progeny. The Restatementaddresses the duty owed by "one who assumes direct responsibility for thesafety of another through the rendering of services in the area ofprotection." The university maintained that the "demise of the doctrineof in loco parentis had dispelled the notion that any special relationshipexist between the university and its student body upon which to posit anyduty to protect students from activities of their fellow students.' '6

6 TheDelaware Supreme Court rejected this argument and recognized a legalduty for the university6 to use reasonable care to protect students against

67the dangerous acts of third parties.During the fraternity initiation, Jeffrey Furek, a pledge of Sigma Phi• 68 6

Epsilon, was accidentally burned by oven cleaner. 69 The University tookactive measures to prevent hazing, which included statements in theStudent Guide advising students that they could be expelled for hazing.The Dean of Students also warned fraternities about the repercussions ofhazing.70 Despite these public pronouncements and warnings concerninghazing, hazing still occurred and the University was aware of it. 7' Fureksued the University alleging that it was negligent in failing to control thedangerous acts of its members.7 ' The jury returned a verdict against the

64. Furek, 594 A.2d at 520; see RESTATEMENT (SECOND) OF TORTS § 323(1964).

65. Furek, 594 A.2d at 517.66. The National Chapter was also sued but the case was dismissed on

jurisdictional grounds. Furek, 594 A.2d at 509.67. Id. at 519.68. See The Estate of Hernadez v Flavio, 930 P.2d 1309, 1311 (Ariz. 1997).

"Pledging a fraternity means that the prospective member promises to enter into asemester-long pledge education program with the intent to join the fraternity'smembership at the program's end." Id.

69. Furek, 594 A.2d at 510.70. Id.71. Id. at 511. Groups of Sig Ep pledges were seen marching around campus

prior to the start of Hell Night. On a night prior to Hell Night, Furek and hisfellow pledges were spotted "sneaking around campus but campus security letthem go because it was just a pledging prank. Id.

72. Id. at 511.

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University and Donchez, the fraternity member who hazed Furek. The71

trial court granted University of Delaware's motion for judgment n.o.v.

In granting the motion for judgment n.o.v., the trial judge concludedthat there was no support for the argument that Restatement (Second) ofTorts § 324(A), titled "Liability to Third Person for NegligentPerformance of Undertaking," should be applied in this case.74 The trialjudge concluded that since the "evidence did not demonstrate that Furekor any fraternity pledge 'relied on the University for his own safety, norbelieved that the University had undertaken a duty of protection in lieu ofthe [the fraternity]'," 75 the University should not be held liable for Furek'sinjuries.

The Delaware Supreme Court began its analysis by examining the

student/university relationship. "The university-student relationship iscertainly unique. While its primary function is to foster intellectualdevelopment through an academic curriculum, the institution is involvedin all aspects of student life. . . . [T]he modern university provides asetting in which every aspect of student life is, to some degree, universityguided., 76 The court then clearly rejected Bradshaw and its line of casesstating, that "no legal or other authority is cited for the assertion thatsupervision of potentially dangerous student activities would create aninhospitable environment or would be largely inconsistent with theobjectives of college education."" More importantly, the Furek courtrecognized the benefits of holding the University responsible in thesesituations. "It seems equally reasonable to conclude that universitysupervision of potentially dangerous student activities is notfundamentally at odds with the nature of the parties' relationship,particularly if such supervision advances the health and safety of at leastsome students.,

78

73. Id. at 512.74. RESTATEMENT (SECOND) OF TORTS § 323 (1964). It states:One who undertakes, gratuitously or for consideration, to render servicesto another which he should recognize as necessary for the protection ofthe other's person or things, is subject to liability to the other for physicalharm resulting from his failure to exercise reasonable care to perform hisundertaking, if (a) his failure to exercise such care increases the risk ofharm, or (b) the harm is suffered because of the other's reliance upon theundertaking.

Id.75. Furek, 594 A.2d at 516.76. Id.77. Id. at 518.78. Id.


The court concluded that there was sufficient evidence to hold theuniversity liable under the common law negligence principle that theUniversity had a duty of reasonable care to protect Furek from theforeseeable acts of dangerous third parties. 9 The court went on to state"[w]hen there is direct university involvement in, and knowledge ofcertain dangerous practices of its students, the university cannot abandonits residual duty of control." 8

Even if a court accepts the analysis in Furek, a general allegation that auniversity owes a duty to its students due to the regulation of certainconduct will not suffice to establish liability. The university must havesought to control the activity that caused the alleged injury. Generalallegations will not give a student a reasonable expectation of protection.8In addition, the university must be aware that the activity causing theinjury occurred on campus.

Rabel v. Illinois Wesleyan University,82 provides an example whengeneral allegations fail to establish liability and a reasonable expectationof protection. The University must have controlled the actual activitywhich caused the injury. Rabel alleged that the University voluntarilyassumed a duty to protect her from injuries. Rabel was injured when afraternity member who was carrying her from her residence hall droppedher on her head. She argued that the University's handbooks, regulationsand policies created an assumed duty to protect her welfare from thenegligent acts of other students.83 Relying on the theories expressed inBeach and Bradshaw, the court concluded that the policies andregulations did not impose a special relationship. 84 The court stated thatthe University's role is to educate and not to insure student safety. 8 The

79. Id. at 519.80. Id. at 519-20. "The University's policy against hazing, like its overall

commitment to provide security on its campus, thus constituted an assumed dutywhich became 'an indispensable part of the bundle of services which colleges...afford their students."' Id., citing Mullins v. Pine Manor College, 449 N.E.2d 331,335 (Mass. 1983).

81. See Univ. of Denver v. Whitlock, 744 P.2d 54, 60 (Colo. 1987). The courtrejected Whitlock's allegations that the University had a duty to control the use ofa trampoline because the student handbook contained certain regulationsregarding student conduct.

82. 514 N.E.2d 552 (Il1. 1987).83. Id. at 558.84. Id. at 560.85. Id. at 560-561. "It would be unrealistic to impose upon a university the

additional role of custodian over its adult students and to charge it with theresponsibility for assuring their safety and the safety of others." Id.

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court did not find any specific examples of assumed duty. In other words,the university did not actively try to control the potentially dangerousactivities. There was no specific regulation that forbade students fromcarrying one another out of the residence hall.

In addition to controlling the activity that caused the fraternity-relatedinjury, the university must also be aware that the fraternity members areengaging in the prohibited conduct.16 For example, in Furek, the courtrelied specifically on University of Delaware's knowledge that despite itspolicies and admonitions on hazing, hazing continued to occur on campus.Although the policy required that the fraternity certify that hazing did notoccur, there were a number of incidents that indicated otherwise." Twoincidents of injuries caused by hazing were reported to the Director of theUniversity Health Services. 88 The University was also aware that hazingoccurred at Sig Ep. Pledges were seen marching around campus, lining upin front of the Sig Ep house. 9 The night before Furek's injury, he and hispledge brothers were stopped by campus security when they wereobserved "sneaking around" but were permitted to continue when thepledges stated they were playing a prank.90 The court used this knowledgeas a basis for holding the university liable.9'

At least one other court has applied Furek's assumed duty analysis. In. 92

Coghlan v. Beta Theta Pi Fraternity, Rejena Coghlan was an eighteen-year-old pledge of the Alpha Phi Sorority at the University of Idaho. At asorority meeting, Coghlan was informed that the sorority had been invitedto a number of fraternity parties to celebrate the recent membership. 93

Although Coghlan was assigned a "guardian angel," a sorority sister whowas supposed to look out for her, the sister did not attend the fraternity

86. See Rothbard v. Colgate Univ., 652 N.Y.S.2d 146, 148 (1997) Afterbecoming extremely intoxicated at a fraternity party, Rothbard fell from thesecond floor of the fraternity house. The court rejected the argument that theUniversity assumed a duty of protection because its policies expressly forbadeunderage drinking and it was unaware that such activities occurred in thefraternity. Id.

87. Furek v. Univ. of Del., 594 A.2d 506, 510 (Del. 1991).88. Id.89. Id. at 511.90. Id.91. Id. at 520. "[W]here there is direct university involvement in, and

knowledge of, certain dangerous practices of its students, the university cannotabandon its residual duty of control." Id.

92. 987 P.2d 300 (Idaho 1999).93. Id. at 305.


parties with her.94 Coghlan went to two fraternity parties. One was

entitled "Jack Daniels' Birthday" party, and the other was called "FiftyWays to Lose Your Liver" party.95 Two of the University's Greek

advisors were in attendance at the party and even congratulated Coghlan

on her admission into the sorority.9% After attending both parties,

Coghlan became intoxicated and was escorted by a sorority sister to the

third floor of the Alpha Phi Sorority house.9 Later in the night, Coghlanfell from the third floor fire escape and suffered serious permanent

• , . 98

injuries.The trial court relied on the reasoning in Bradshaw and dismissed

Coghlan's claim against the University because the University owed no

duty of care to plaintiff. The Idaho Supreme Court reversed. The

Supreme Court agreed with Bradshaw that "the modern American

college is not an insurer of the safety of its students."99 The court stated

that this was not the end of the analysis. The court acknowledged that the

university could be held liable because "it is possible to create a duty

where one previously did not exist. If one voluntarily undertakes to

perform an act, having no prior duty to do so, the duty arises to perform

the act in a non-negligent manner."'' ° The court concluded that there was

sufficient evidence to establish a claim against the University to overcome

a motion to dismiss for failure to state a claim but was unwilling to

conclude as a matter of law an assumed a duty existed.'0 '

Courts have been reluctant to apply the Furek analysis. Even thoughuniversities have taken active steps to enforce their drinking or hazing

policies, courts have continually held that a social policy prohibiting

underage drinking does not create a special relationship and a duty for theuniversity to protect students.

For instance, in Booker v. Lehigh University,'02 an underage student

became intoxicated at the Alpha Sigma Phi fraternity. While walking

home from the fraternity party, the student fell and suffered serious head

injuries. Lehigh had published a booklet entitled "A Guide to the Social

94. Id.95. Id.96. Id.97. Id.98. Id.99. Id. at 312 (relying on Bradshaw v. Rawlings, 612 F.2d 135, 138 (3d Cir.

1979)).100. Coghlan, 987 P.2d at 312.101. Id.102. 800 F. Supp. 234 (E.D. Pa. 1992).

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Policy" which prohibited the distribution of alcohol to minors."" Therewas no security guard on duty at the fraternity party, which was also aviolation of the social policy.'4 Nonetheless, in the court's opinion, thebooklet and the absence of the security guard did not amount to a dutyon behalf of Lehigh to protect the plaintiff from getting voluntarilyintoxicated. The court stated that if the policies created a specialrelationship, there would be an unwarranted return to the in loco parentisstandard.' 5 Lehigh did not plan, approve or control the party, nor did itsupply the alcohol that caused plaintiff's intoxication. "' The courtconcluded that the purpose of the drinking policy was to instruct studentsto behave like adults and to drink responsibly.0 7 Therefore, the universityhad not assumed a duty to protect the student.

The court in Lehigh based its decision on the fear that holding the

university liable would return the relationship between students and theuniversity to in loco parentis. The court reasoned that although universitycontrol of a student's behavior may have been possible in the past, theuniversity could no longer exercise such pervasive control. 18 Thisreasoning is misplaced. Typically, today's colleges control most aspects ofa student's life.'0 These regulations include prohibitions on underagedrinking, hazing and injuring fellow students."0 In addition, the universitycontrols the fraternity."'

103. Id. at 236.104. Id.105. Id. at 238.106. Id.107. Id. at 241.108. Id. at 239.109. See Phelps v. President and Trs. of Colby Coll., 595 A.2d 403 (Me. 1991).

Colby College had jurisdiction over students of the underground Lamda Chifraternity whether the activities prohibited by the college were committed oncampus or not. See also, Anthony v. Syracuse Univ., 231 N.Y.S. 435 (N.Y. App.Div. 1928) (sorority sister could be expelled from school for "inappropriate"behavior in an off-campus sorority house); Kusnir v. Leach, 439 A.2d (Pa.Commw. Ct. 1982) (student could be suspended for assault of anther student in anoff-campus house).

110. Anthony v. Syracuse Univ., 231 N.Y.S. 435 (N.Y. App. Div. 1982)(sorority sister could be expelled from school for "inappropriate" behavior in anoff-campus sorority house); Kusnir v. Leach, 439 A.2d (Pa. Commw. Ct. 1982).Student could be suspended for assault of another student in an off-campus house.Edwards v. Kappa Alpha Psi Fraternity, Inc., No. 98-C-1755, 1999 WL 1069100 at*6 (N.D.IlI. Nov. 18, 1999).

111. Estate of Hernandez v. Delta Tau Delta Fraternity, Inc., 838 P.2d 1283,


The court in Lehigh turned a blind eye to the purpose of the Lehigh

regulations. The court stated that the purpose of the alcohol policy was to

allow those of legal drinking age to drink on campus."' Although the

record in the case did not state the entire alcohol policy, it is likely that

the policy was also intended to control underage drinking. More

importantly, the purpose of this policy was to prevent injuries caused by

underage drinking.

Most universities have policies that regulate student life and that

respect state laws prohibiting drinking for persons under the age of

twenty-one."3 Universities also provide penalties for such infractions,

which may include attendance at alcohol abuse classes, fines or

suspension. The court in Lehigh ignored the fact that the purpose of the

policy was to prevent injuries based solely on alcohol abuse. This was

because of the court's unfounded fear of the return of the standard of inloco parentis. Once the University took an active step to control underagedrinking and was aware that students and fraternities were ignoring these• • 114

policies, the University had a duty to enforce its regulations.

While I do not argue that a university's enforcement of regulations and

policies should subject it to the strict liability days of in loco parentis, suchactive involvement should subject them to liability. Presumably the

purpose of the university's regulations and policies is to protect the

student from injury. Once the university seeks to protect the student fromhazing or drinking, the university should not be able to escape liability on

the outdated notion that the university is merely an educator. " 5

1287 (1995).A Greek Relationship Statement... approved by the University...notes that the university employs a professional staff member who isresponsible for the administration of university policies relating tofraternity/sorority activities. The statement also requires all chapters tocomply with all 'federal, state and local laws, and University of Arizonaregulations, guidelines and procedures concerning student and studentorganizations conduct."

Id.112. See Booker, 800 F. Supp. at 239.113. See Furek v. Univ. of Del., 594 A.2d 506, 516 (Del. 1991).114. Admittedly, in Lehigh, the plaintiff's injuries where mainly the result of

her own voluntary intoxication and unwise choice of taking a dangerous pathwhile in an intoxicated state. The argument becomes more persuasive when thecollege has actual knowledge of violations of school policy and does nothing toprevent foreseeable injuries. See discussion infra Part III C.

115. See Coghlan v. Beta Theta Fraternity, 987 P.2d 300 (Idaho 1999). Thecourt held that the university did not have a duty to aid or protect adult students

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B. Liability under the Theory of Social Policy

As noted in Part I, universities continue to escape liability forfraternity-related injuries. At least one court has held a university liableon social policy grounds. In Morrison v. Kappa Alpha Psi Fraternity,"16

Morrison was assaulted and hazed by the president of the fraternity. Theplaintiff brought suit against the local fraternity, the national fraternity,the president of the local fraternity and the state of Louisiana through theBoard of Trustees for State Colleges and Universities."7 The court notedthat the evidence showed the university exercised some control over thefraternity and was aware of prior incidents of hazing. The court stated,"social policy justifies a special relationship between the University andits students in this particular instance."'

18 However, this social policy was

limited to incidents involving hazing."9

There has been great concern over liability from hazing. At least onecommentator has suggested that schools may become increasingly liablefor failure to take active measures to prevent hazing."2 Potential plaintiffssubjected to hazing may claim that the school has violated theirconstitutional right to bodily integrity. 12 If the school has been"deliberately indifferent" to the due process rights of students, it may face

122liability under 42 U.S.C. § 1983.

from risk associated with voluntary intoxication. However, there may be anassumed duty to protect when the evidence showed that two university officialswere at the party where the fraternity was serving underage students. Id.; see also,Millard, 611 A.2d 715, 720 (Pa. Super. 1992). College did not assume a duty tocontrol behavior of students by implementing and enforcing and alcohol policy.Id.

116. Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105 (La. App. Ct.1999).

117. The incident occurred at Louisiana Tech University.118. Morrison, 738 So. 2d at 1115.119. See Booker v. Lehigh Univ., 800 F.Supp 234 (1992). Court rejects

plaintiff's argument that social policy amounts to a duty for the university tocontrol on campus parties.

120. David S. Doty, Enough is Enough: The Legal Responsibility of PublicSchools and Universities to Prohibit Hazing, 134 ED. L. REP. 423 (1999).

121. See Alton v. Hopgood, 994 F. Supp. 827 (S.D. Tex. 1998). The court heldin favor of the college because it had a duty to take reasonable measures toprevent the hazing. Id.

122. See Doty, supra note 121; see also, Gosk, supra note 50, at 174. "Inorder for a § 1983 to be triggered, the plaintiff in a civil rights action must showthat the defendant acted under color of law." Id.


C. Liability under Social Host/Dram Shop Acts

Although there is no case law that has held a university liable underdram shop or social host liability, courts frequently examine the acts ofthe local fraternity chapter under this theory. In a number of cases, theuniversity that owns the property where alcohol was served resulted in aninjured plaintiff."' Therefore, if the basis of the social host liability is theownership and control of the premise, it is reasonable to extend thisliability to universities.

Social host liability has become an increasingly popular theory oflitigation in the past few years.124 Although cases involving social hostliability have expanded, there is no uniform acceptance of thesetheories. There are two main issues that must be addressed whendiscussing social host liability. 126 The first issue is the presence or absenceof a statute that limits the liability of social hosts. The statute will oftendetermine the extent of the liability. The central question in analyzing thestatute is whether the statute limiting social host liability protects socialhosts who serve minors. The second issue is whether the person who issuing for damages was the intoxicated party or a third party who wasinjured by the intoxicated individual.

The Estate of Hernandez v. Arizona Board of Regentsn 7 illustrates theapplicability of these two concerns. Rayner, a member of Epsilon EpsilonChapter of Delta Tau Delta, attended a bid party on the night of the• .128

accident. Rayner was under the age of twenty-one but was allowed todrink at the party. All members of the fraternity were allowed to drink atthe party regardless of their age, as long as they contributed to thedrinking fund. This included Rayner, whose blood alcohol level at the

123. Nina J. Emerson and Sarah B. Stroevel, Another Look at Dram ShopLiability, 73 Wis. LAW. 14, 16-17 (2000); Richard Smith, A Comparative Analysisof Dramshop Liability and a Proposal For Uniform Legislation, 25 J. CORP. L. 553(2000);

124. See generally Edward L. Raymond, Jr., Annotation, Social Hosts Liabilityfor Injuries Incurred by Third Parties as a Result of Intoxicated Guest's Negligence,62 A.L.R.4th 16 (1988).

125. See Note, Darry D. Sparlin, Social Host Liability for Guests Who Drinkand Drive: A Closer Look at the Benefits and the Burdens, 27 WM. & MARY L.REV. 583 (1986).

126. See Andres v. Alpha Kappa Lamda Fraternity, 730 S.W.2d 547 (Miss.1987); Oja v. Grand Chapter of Theta Chi Fraternity Inc., 684 N.Y.S.2d 344 (1999)

127. 866 P.2d 1330 (1994).128. Id. at 1333.

2001]


time of the accident was .15.129 Ruben Hernandez was killed in anautomobile accident with Rayner. The Estate of Hernandez sued thenational and local fraternity chapter and the Arizona Board of Regents

130who leased the fraternity house.The fraternity unsuccessfully argued that it was protected under

Arizona's social host liability statute. This statute grants civil immunity toa non-licensee who serves alcohol to a person over the legal drinking131

age. The court examined the legislative intent of this statute and heldthat the social host liability statute only protected non-licensees whofurnished alcohol to persons over the legal drinking age."' In otherwords, the fraternity does not escape liability under the social hostliability statute because it knowingly serves alcohol to minors.

The court also examined the social duty under common law' 33

principles. It noted that most state courts recognized a claim against asocial host who served alcohol to a minor while a minority deferred the• 134

social host policy issue to the state legislature. Although the commonlaw does not recognize liability for serving alcohol to those of legal age,"'it does recognize an action in negligence for furnishing a minor with a• 136

dangerous instrument. The Arizona Supreme Court noted that itsopinion in this case was not to be interpreted as a rule of absolute liabilityfor serving alcohol to minors. 137 The plaintiff must still prove all elementsof his or her negligence claim.

In contrast, Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v.

129. Id.130. Id. at 1334.131. Ariz. Rev. Stat. §4-301 reads:

Liability limitation; social hostA person other than a licensee ... is not liable in damages to any personwho is injured, or to the survivors of any person killed, or for damages toany person who is injured, or to the survivors of any person killed, or fordamage to property, which is alleged to have been caused in whole or inpart by reason of the furnishing or serving of spirituous liquor to a personof the legal drinking age.132. Hernandez, 866 P.2d at 1336.133. Id. at 1339.134. Id.135. The general reason is based on proximate cause. The serving of alcohol

is too remote a cause and the proximate cause is the voluntary consumption of thealcohol. See State v. Hatfield, 78 A.2d 754 (Md. 1951).

136. Hernandez, 866 P.2d at 1340; see generally, RESTATEMENT (SECOND) ofTORTS § 390 (1965).

137. Hernandez, 866 P.2d at 1342.

2001] Fraternity Related Injuries 757

Sullivan"8 illustrated that a local chapter will not be held liable under asocial liability theory for serving alcohol to minors.3 9 Todd Prince, theson of the appellees, was invited to a Pi Kappa Alpha fraternity hayride.'4 0

On the way back from the hayride, the driver of the truck stopped to letsome passengers relieve themselves. Todd Prince, one of thesepassengers, was struck and killed by a vehicle as he crossed the road.' PiKappa Alpha appealed the jury's verdict in favor of appellees arguing thatthe jury should not have been instructed on "dramshop"'' 4

1 liability, whichimposes liability on the seller of intoxicating liquors when a third personhas been injured as a result of the buyers' intoxication.' The appellatecourt agreed. The court held that absent a Dram Shop Act, the courtwould not impose liability in these circumstances

[T]he instruction runs counter to that group of cases wherein wehave held that one who furnishes alcohol to a minor or tosomeone who is inebriated is not liable by so doing. We haveembraced that principle even where the violation of a statuteaccompanied the furnishing of alcohol.14

1

138. 740 S.W.2d 127 (Ark. 1987).139. For a companion case, see Andres v. Alpha Kappa Lamda Fraternity,

730 S.W.2d 547 (Miss. 1987). Because neither statute holding commercial vendorsliable for serving alcohol to minors nor common law principles of duty not tofurnish minors with alcohol, plaintiff did not state a claim for relief upon socialhosts. The court reasoned that social hosts, unlike commercial vendors, did notrecognize any pecuniary gain from serving alcohol beverages and have noincentive in promoting alcohol consumption. Therefore, fraternity had no duty toprevent intoxication of member, which resulted in death. Id.

140. Sullivan, 740 S.W.2d at 129.141. Id.142. "Dram-shop" is "a drinking establishment where liquors are sold to be

drunk on the premises; a bar or saloon." BLACKS LAW DICTIONARY 494 (6th ed.1990).

143. Emerson, supra note 25; BLACKS LAW DICTIONARY 494 (6th ed. 1990)explains Dram Shop Acts:

Many states have Dram Shop or Civil Liability Acts which imposesliability on the seller of intoxicating liquors (which may or may notinclude beer), when a third party is injured as a result of the intoxicationof the buyer where the sale has caused or contributed to suchintoxication. Some acts apply to gifts as well as sales. Such acts protectthe third party not only against personal injuries and property damagesresulting directly from affirmative acts of the intoxicated man.

Id.144. Sullivan, 740 S.W.2d at 130.145. Id.


Therefore, the fraternity was not liable for furnishing alcohol to Princeeven though he was a minor. Until the state legislature enacted a dramshop liability statute which would establish liability for furnishing alcoholto minors, the court would not find a duty under existing law.

Determining whether social host liability exists does not end theanalysis. Even if a court will allow a common law or statutory prima facienegligence claim,' 46 the plaintiff must still show that the underage drinkerwas likely to have acted in a manner that caused plaintiff's injuries. InSparks v. Warren,47 the plaintiff was assaulted by an underage fraternitymember who obtained alcohol at the fraternity house. 148 Even though thefraternity knew that Warren was not twenty-one years old, this was notenough to state a claim of negligence under social host liability.149 Thecourt found that the plaintiff had to prove that it was foreseeable thatWarren was likely to become violent while intoxicated. ° The courtstated: "[tihe fact that someone is visibly intoxicated or underage standingalone, does not make it foreseeable that serving alcohol to the personcreates an unreasonable risk that the person will become violent.' 5

Some courts refuse to allow recovery for damages suffered by theintoxicated individual. In Coghlan v. Beta Theta Pi Fraternity, the courtheld that the language of the Idaho Dram Shop statute was clear and thatno action could be brought by an intoxicated person who suffered injuries

112due to his/her intoxication even if he/she was not of legal drinking age.Additionally, some courts strictly construe the Dram Shop Acts andrequire actual knowledge by the person furnishing the alcohol that theperson to whom he furnished the alcohol was visibly intoxicated."' Thefurnisher's knowledge is therefore judged by a subjective standard.

It is also important to note that most statutes impose liability for thefurnishers of alcohol,' 55 not merely for having alcohol on the premises. 56

146. Prima facie means that the plaintiff has shown a duty owed to plaintiff, abreach of that duty, the breach proximate caused the injury, and the injury causedrecompensable damages.

147. 856 P.2d 337 (Or. 1993).148. Id. at 338.149. Id.150. Id. at 339151. Id. (citing Moore v. Willis, 767 P.2d 62 (Or. 1988)).152. Coughlin, 987 P.2d at 339.153. See Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968,

974 (Ind. 1999).154. Id.155. See Fasset v. Poch, 625 F. Supp. 324, 332 (Pa. 1985). The court held that


Furnishers may include adults and minors. Furnishing does not meanallowing a party on one's premises"' or the purchase or transporting ofthe alcohol. 5 9 Some courts limit the definition of furnishing to those whophysically hand' 60 the person the intoxicating beverage."'

The doctrine of social host liability continues to be a subject ofdebate. 16 While there is no single rule for social host liability, theapplicable statute will control the courts' decision. Although proving thata university should be held liable under social host liability would bedifficult, an injured plaintiff may utilize this theory. 63 If the universitywas the owner of the premise where the alcohol was furnished, hadknowledge that the alcohol was being consumed, and the premise islocated in a jurisdiction with an applicable statute or common lawapproach, the plaintiff may pursue a cause of action based on social hostliability.

D. Liability under the Theory of Premises Liability

Universities often own the fraternity house or the property where the

it does not matter whether the furnisher is a minor or an adult but the age of theminor should be taken into consideration. Id.

156. See Kappa Sigma Int'l Fraternity v. Tootle, 473 S.E.2d 213 (Ga. 1996).Court granted fraternity's motion for summary judgment when plaintiff failed toproduce evidence that fraternity knowingly furnished alcohol to guest who wasinvolved in deadly automobile accident. It was not enough that guest becameintoxicated while at the Kappa Sigma party. Id.

157. See Fasset v. Delta Kappa Epsilon, 807 F.2d 1150, 1159 (3d Cir. 1986)158. See Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 485

P.2d 18, 22 (Or. 1971).159. See id.

160. See Bennett v. Letterly, 141 Cal. Rptr. 682, 684 (1977). "The word'furnish' implies some type of affirmative action on the part of the furnisher.Failure to protest or attempt to stop another from imbibing an alcoholic beveragedoes not constitute 'furnishing."' Id.

161. But see Fasset, 807 F.2d at 1160. Court holds that it rejects the theorythat furnisher means only those who physically serve the minor alcohol. The courtextends the social host doctrine to cover civil conspirators or accomplices. Thecourt required in order to hold the defendant civilly liable: "(1) the allegedaccomplice must have had an intention to promote or facilitate the consumptionof alcohol by a minor and (2) the alleged accomplice must have aided, agreed orattempted to aid in the minor's consumption of alcohol." Id.

162. Christopher T. Pierson and Lelia B. Helms, Liquor and Lawsuit: FortyYears of Litigation over Alcohol On Campus, 142 ED. LAW REP. 609, 611 (2000).

163. See generally Andres v. Alpha Kappa Lamda Fraternity, 730 S.W.2d 547(Miss. 1987).

2001]


fraternity-related injury occurs. Injured plaintiffs may also seek to holdthe university responsible on the theory of premises liability.'9 Undercommon law, a landowner is under a duty of reasonable care to protect itsinvitees16 from injuries which are not open or obvious.'66

In addition to relying on assumed duty, the court in Furek recognizedthat as a landowner the university had a duty to protect Furek as aninvitee from dangerous conditions known or easily discoverable to thelandowner. The court noted that the duty to protect students' 68 onlyextended to the foreseeable acts of third persons who are under universitycontrol. 16 Evidence of the university's knowledge included universitysecurity guards witnessing the pledges marching with paddles and theuniversity's common knowledge that hazing occurred.170 Since the courtfound that the university knew of a dangerous condition, there wassufficient evidence for a jury to determine the foreseeability of Furek'sinjury.71 Even though the university did not own the house itself, it wassituated on university property. The court held that the universityexercised some control over the fraternity through its ability to enforce

164. Restatement (Second) of Torts § 344 states:A possessor of land who holds it open to the public for entry for hisbusiness purposes is subject to liability to members of the public whilethey are upon the land for such purpose, for physical harm caused by theaccidental, negligent, or intentionally harmful acts of third persons oranimals, and by the failure of the possessor to exercise reasonable care to(a) discover that such acts are being done or are likely to be done, or (b)give a warning adequate to enable the visitors to avoid the harm, orotherwise to protect against them.

Id. It seems equally reasonable to conclude that university supervision ofpotentially dangerous student activities is not fundamentally at odds with thenature of the parties' relationship, particularly if such supervision advances thehealth and safety of at least some students.

165. A person is an "invitee" on the land of another if (1) he enters byinvitation, express or implied, (2) his entry is connected with the owner conductsor permits to be conducted on his land and (3) there is mutuality of benefit orbenefit to the owner. BLACK'S LAW DICTIONARY 827 (6th ed. 1990).

166. For discussion of the general principles of premises liability, seeCARLTON D. FISHER, PREMISE LIABILITY INA NUTSHELL (1999).

167. See RESTATEMENT (SECOND) of TORTS § 343 (1964)168. See Marshall v. Univ. of Del., 633 A.2d 370 (Del. 1993). The court held

that a university's duty to protect against foreseeable acts of third parties onlyextends to students of the university. Id.

169. Furek v. Univ. of Del., 594 A.2d 506, 521 (Del. 1991).

170. Id. at 511.

171. Id. at 522.

2001] Fraternity Related Injuries 761

security and anti-hazing regulations, even if they occurred in the fraternityhouse.172

The duty of landowners to protect invitees or tenants from criminal orintentional acts of third parties has been the subject of many debates overthe past years. A majority of jurisdictions hold that landowners have aduty to protect invitees from foreseeable attacks. 173 A university owesstudent tenants the same duty to exercise reasonable care as a privatelandowner)7 4 Courts utilize four tests to determine whether or not theconduct was foreseeable: (1) the specific harm test, (2) the prior similarincidents tests, (3) the totality of the circumstances test and (4) thebalancing test.175 In contrast, other courts have rejected the notion that alandlord has a duty to protect a tenant from harm caused by intentional orcriminal acts of third persons.171

Premises liability has been used to hold the university liable for non-fraternity-related injuries. For example, in Nero v. Kan. State Univ.,177 thecourt held that the university owed its students the same duty to exercisedue care for their protection as private landowners. A student namedRamon Davenport sexually assaulted Shana Nero.179 Davenport wasaccused of raping another student thirty-five days before Nero's attack." °

Following the rape accusation, the University assigned Davenport to anall-male dorm and instructed him that he was not to enter the femaledorm. M At the end of the calendar school year, all students who attendedsummer school lived in the same dorm."" This included both DavenportS 183

and Nero. Davenport attacked Nero while doing laundry in the

172. Id.173. See Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968,

971-3 (Ind. 1999). The court held that a prior sexual assault and the evidence thefraternity knew that fraternity members were most likely to commit sexualassaults on college campuses made it foreseeable that such sexual assault ofplaintiff would occur and the landowner owed plaintiff a duty to take reasonablecare to protect plaintiff. Id.

174. See Peterson v. San Francisco County Coll. Dist., 685 P.2d 1193 (Cal.1984).

175. See Delta Tau Delta, 712 N.E.2d at 971.176. See Rabel v. I11. Wesleyan Univ., 514 N.E.2d 552, 561 (Ill. 1987).177. 861 P.2d 768 (Kan. 1993)178. Id. at 769.179. Id. at 771180. Id.181. Id.182. Id. at 772.183. Id.


basement of the dorm.'m Following the incident, Nero filed suit againstthe University alleging that it had a duty to protect her againstDavenport.

181

The court began its analysis with Bradshaw and stated that theUniversity was the insurer of a student's safety.'86 The court also lookedat the Furek analysis. I' The court rejected Furek's reasoning that theuniversity had an assumed duty to protect but accepted the landowner-invitee argument.""' The court stated:

[w]e emphasize that a university is not an insurer of the safety ofits students. Nonetheless, a university has a duty of reasonablecare to protect a student against certain dangers, includingcriminal actions against a student by another student or a thirdparty if the criminal act is reasonably foreseeable and within theuniversity's control.'89

The University knew of the allegations against Davenport and had toldhim where he had to live in the past."9" The University could haveexercised control over Davenport and refused to allow him to stay on191

campus. Finding a duty to protect, the court remanded for trial todetermine whether Davenport's attack was foreseeable.' g2

Applying these common law principles, courts should be willing toapply the analysis illustrated in Furek and Nero, which merely applies thecommon law duties of landowners. Since universities typically own theproperty where the fraternity-related injuries occur, they should be held

• / 193

to the same duties as any other landowner. However, these cases are

184. Id.185. Id.186. Id.187. Id. at 579.188. Id. at 780.189. Id. at 772.190. Id.191. Id.192. Id.193. It is important to note that the court in Nero was looking at the criminal

propensity of Davenport. Much of fraternity activity is also criminal. Forexample, serving alcohol to a minor. In addition, at least forty states currentlyhave anti-hazing statutes. See ALA CODE § 16-1-23 (1975); ARK. CODE ANN. §6-5-201 (LExIS 1987); CAL EDUC. CODE § 32050 (West 1977); COLO. REV. STAT. § 18-9-124 (2000); CONN. GEN. STAT. ANN. § 53-23A (WEST 1958); DEL. CODE. ANN.,TIT. 14, § 9301 (1979); FLA. STAT. ANN. § 230.23005 (West 2000); GA. CODE ANN.§ 16-5-61 (Lexis 1999); IDAHO CODE § 18-917 (Michie 1997); ILL. COMP. STAT.

120/0.01 (West 1993); IND. CODE § 34-30-2-150 (1998); IOWA CODE § 708.10


always fact-sensitive; the plaintiff must demonstrate that the universityhad knowledge of the dangerous condition but failed to warn the plaintiff.

IV. COMPARISON OF THE NATIONAL FRATERNITY LIABILITY ANDTHE UNIVERSITY'S IMMUNITY

The national fraternity is frequently held liable for fraternity-relatedinjuries. Courts apply the same liability theories unequally and oftenimmunize the university from liability. Some courts go to great lengths tohold the national fraternity liable even when they allow the university thatalso exercised control over the fraternity members to escape liability.

The National Fraternity is normally an incorporated entity. 94 Thepurpose of the National Fraternity is to guide and promote unity in itslocal fraternity chapters. Generally, the National Fraternity supervisesthe local chapters and its members to ensure that they are carrying out thefraternity's purpose and quasi-religious functions of the nationalorganization.9 The National Fraternity has rules, regulations andrequirements that each local chapter must abide by in order to remain ingood standing.' 9 That National Fraternity controls the local chapter byenforcing the National Chapter's policies and by-laws, supervising localchapters' day-to-day activities, punishing or revoking the local chapter'scharter and generally the scope of authority the National Fraternity holdsover the local chapter. 9'

(1992); KAN. STAT. ANN. § 21-3434 (1995); Ky. REV. STAT. ANN. § 164.375(Michie 1999); LA. REV. STAT. ANN. § 17:1801 (West 1997); ME. REV. STAT. ANN.TIT.20-A § 6553 (West 1999); MD. ANN. CODE ART 27, § 269H (Michie 1957);MASS. GEN. LAWS. ANN. CH. 269, § 17 (West 1992); MINN. STAT. ANN. § 121A.69(West 1999); MISS. CODE. ANN. § 97-3-105 (West 1972); Mo. REV. STAT. § 578.363(1994); MONT. CODE. ANN. § 81-2-120 (West 1999); NEB. REV. STAT. § 28-311.07(1999); N.H. REV. STAT. ANN. § 631:7 (Michie 1996); N.J. STAT. ANN. § 2C-40-3(West 1993); N.Y. PENAL § 120.16 (2000); N.C. GEN. STAT. § 14-35 (2000); N.D.CENT. CODE § 12.0-17-10 (1997); OHIO REV. CODE ANN. § 2307.44 (Anderson1994); OKLA. STAT. TIT. 21 § 1190 (West 1983); OR. REV. STAT. § 163.197 (1998);24 PA. CONS. STAT § 5351 (Purdens 1973); R.I. GEN. LAWS § 11-21-1 (1956); S.C.CODE ANN. § 16-3-510 (Law Co. 1976); TENN. CODE ANN § 49-7-123 (Michie1996); TEX. EDUC CODE. ANN. § 37.152 (Purdens 1977); UTAH CODE ANN. § 53A-11-908 (1953); WASH. REV. CODE § 28B.10.900 (1995); W.VA. CODE § 18-2-33(1992); Wis. STAT. ANN. § 948.51 (West 1997).

194. See Rutledge, supra note 2.195. Marshall v. Univ. of Del., 1986 WL 11566 at *7 (Del. 1986).196. Edwards v. Kappa Alpha Psi Fraternity, Inc., No. 98-C-1755, 1999 WL

1069100 at *6 (N.D.Ill. Nov. 18, 1999).197. Edwards, 1999 WL 1069100 at *6; Marshall, 1986 WL 11566 at *7

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In Marshall v. Univ. of Del.,'98 the Superior Court of Delaware appliedtwo theories to hold the national chapter liable while granting theUniversity's Motion for Summary Judgment. Marshall, who was neither afraternity member nor a student, was injured at a Kappa Alpha partywhen Sigma Nu fraternity members attempted to enter the party withoutpaying the cover charge. 99 The court reasoned that the nationalorganization of Sigma Nu would only be liable if the local chapter actedwithin the scope of the agency relationship and if the national chapter hada right of control over the local chapter's day-to-day activities." Thelocal chapter's failure to control its members in a "responsible fashion"fell within the scope of agency because one of the national chapter'spurposes was to "provide an opportunity for the members of theorganization to associate in a responsible fashion."20 ' The fight did not fallinto the realm of associating in a responsible fashion. The court foundthat the national chapter's control over day-to-day activities included theduty to inspect and supervise local chapters, the right to remove localofficers, and to right to suspend the fraternity.2 2

Therefore, the national fraternity, through its policies and guidelines topromote brotherhood, was held liable for fraternity-related injuries. Ifthe university policy is to prevent hazing or underage drinking, should notthey also be subject to the same liability? When there is evidence that thenational fraternity exercised sufficient actual control, the national chaptershould be held liable but this liability should also extend to the

2031University.

The Superior Court of Delaware in Marshall v. University of Delaware

(National chapter had power to remove a local chapter's office for failure toperform duties, to place a local chapter under the control of an Alumni Board ofReceivers, and the power to inspect and supervise the local chapter).

198. 1986 WL 11566 at *1.199. Id.200. Id. at *7.201. Id.202. Id. at *8.203. Edwards v. Kappa Alpha Psi Fraternity, Inc., No. 98-C-1755, 1999 WL

1069100 at *6 (N.D. Ill. Nov. 18, 1999). Edwards was a victim of hazing over aperiod of initiation. The evidence showed that the national chapter controlled theprocess by which a person can join a fraternity. Kappa Alpha Psi abolished thepledge process which frequently included hazing, sent representatives to localcampus to instruct on policies and required that anti-hazing policy be posted andencouraged reported hazing incidents directly to national. The court noted thatthis did not establish that Kappa Alpha Psi was necessarily negligent. There wasenough evidence for the case to go to the jury. Id.


also applied custodial theory of liability to hold the national fraternityliable but not the University.' °4 The court defined custodial liability as:

(1) the defendant had a duty to control the conduct of the acting(or non-acting party); (2) the defendant knew of or had reasonto foresee the acting (or non-acting) party's conduct; (3) theplaintiff was within the sphere of foreseeable risk created by theacting (or non-acting) party's conduct; (4) the defendantbreached his duty to control the acting (or non-acting) party; (5)the defendant's breach of duty actually and proximately causedthe plaintiff's injuries; and (6) there are no affirmative defensesprecluding liability.2°5

The national chapter will be held liable only where it has a duty to controlthe local chapter. A duty to control normally is found when there is aspecial relationship between the party with the duty to control (i.e. thenational chapter) and the party to be controlled (i.e. the local chapter) orthe party for whose protection the duty to control is imposed (i.e. theplaintiff). 20 6 This duty of reasonable care can be found if one "takescharge" of another "whom he knows or should know to be likely to causebodily harm." 207 The relationship between the parties should be of such anature that "social policy justifies the imposition of a duty to act., 20 8

Applying these principles, the Marshall court held that the nationalfraternity had a duty to protect the plaintiff and control the localchapter. The court stated that although the national fraternity wasremoved geographically from the local chapter, it had the ability tosupervise all of its chapters, to supervise trends and to take correctiveaction.21

0 The court also relied on the national fraternity's power torevoke the local chapter's charter. The national chapter knew of the localchapter's apparent disregard for the safety of others. " Marshall was a

204. 1986 WL 11566 *1 (Del. Super. Oct. 8, 1986).205. Id. at *1.206. RESTATEMENT (SECOND) OF TORTS § 315 (1965); Marshall, 1986 WL

11566 at *4.207. RESTATEMENT (SECOND) OF TORTS § 315 (1965).208. William L. Prosser and W. Page Keeton, PROSSER AND KEETON ON

TORTS 374 (5th ed, Lawyer's Edition 1984).209. The court previously held that fraternity members needed to be

controlled because they tend to engage in conduct such as hazing and holdinglarge open parties. Marshall, 1986 WL 11566 at *8.

210. Id.211. This evidence was based on a letter to from Sigma Nu's Executive

Director to the Commander of Sigma Nu stating that Sigma Nu members hadbeen involved in removing fire extinguishers and lighting fireworks in residence

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• • 212

foreseeable plaintiff, and the national chapter's failure to control was aproximate cause of plaintiff's injuries."' Therefore, the national chapterhad a duty to control the local chapter of Sigma Nu.1

This analysis is equally applicable to the university. Once theuniversity recognizes the need to control fraternity members to preventhazing or underage drinking, it has assumed a duty to protect foreseeablepersons who are injured by hazing and underage drinking. I believe thatthe university is in an even better position to control these behaviorsbecause the university has a more direct relationship with the fraternitymembers than the national fraternity has. The national fraternity may befar removed geographically from the local chapter, whereas the universityis not. Furthermore, the university is in a better position to learn whetherthe fraternity is following its policies because of its proximity to thefraternity.

A good example of the analysis that should be applied to both theuniversity and the national fraternity is found in Morrison v. Kappa AlphaPsi Fraternity."' The court in Morrison held that the national chapter didhave a duty to prevent hazing based on the evidence that the nationalchapter had the power to control, expel and suspend members forhazing."' In addition, the national chapter knew of prior hazing incidentsof the local chapter."7 Therefore, the national chapter had a duty toprevent injuries caused by hazing. 8 The court in Morrison emphasized

halls. Id.212. Id. at *9. Zone of danger included anywhere a Sigma Nu member would

go acting as a Sigma Nu member.213. Id.214. Id.; See Furek v. Univ. of Del., 594 A.2d 506, 514 (1990). The court

upheld a jury finding that the national fraternity was not liable for injuries. Thecourt held that even though the national chapter was aware that hazing hadoccurred in the past, prior to the incident the national chapter believed the localchapter was free of hazing. Therefore, it was reasonable to conclude that thenational fraternity had dispelled its duty of reasonable care. Id. For another casediscussing the national chapters duty to control see Andres v. Alpha KappaLambda Fraternity, 730 S.W.2d 547 (Mo. 1987). There the court rejected theclaim that national fraternity breached a duty to control by failing to implementand enforce policies prohibiting underage drinking. Id.

215. Morrison v. Kappa Alpha Psi Fraternity, 738 So.2d 1105, 1113 (La. Ct.App. 1999).

216. Id. at 1105, 1113, 1118.217. Id. at 1118.218. See Morrison, 1999 WL 286002. The National Fraternity assumed a duty

to protect against and prevent hazing when they implemented policies prohibiting


219the knowledge requirement.

These theories are equally applicable to the university. It is unfair toallow universities to control the behavior of members in local fraternities

and escape liability on the ground that the university is solely an educator220

and does not provide for students' safety. Common law principles oftort litigation followed in Furek should apply to the universities.

Specifically, once a university has exercised control over a fraternity andits members, and has knowledge that the university's policies have not

been followed, the university should be held liable.

V. WHAT FRATERNITY-RELATED LITIGATION HAS MEANT FORFRATERNITIES AND COLLEGES

The tragedies and litigation resulting from fraternity related injurieshave heightened awareness of the problems associated with fraternity

practices. Colleges"' and fraternities... have been pushed into creatingand enforcing stiffer policies against alcohol consumption and hazing inorder to reduce the injuries resulting from these activities."' Colleges will

hazing in local chapters and had prior knowledge of hazing incidents at localchapter. Id. But see Delta Tau Delta, Beta Alpha Chapter v. Johnson 712 N.E.2d968, 975 (Ind. 1999). The court rejected the theory that the national chapterassumed a duty to protect plaintiff who was sexually assaulted at the fraternitybased on the fact that the national chapter distributed posters stating that thefraternity was a fighter against date rape.

219. 738 So. 2d at 1118-1119.220. See Lloyd v. Alpha Phi Alpha Fraternity, 1999 WL 47153 (N.D.N.Y.

1999), The United States District Court for the Northern District of New Yorkheld that the university had no duty to protect plaintiff from being hazed althoughthe national fraternity had such a duty. The court stated that "despite [Cornell's]having attempted to monitor fraternity conduct, intervened in the fraternitypledge process, permitted the use of its premises for fraternity activities, enabledits staff to serve as fraternity advisors, funded and subsidized fraternityorganizations registered on campus and enabled [the fraternity] to maintain apresence on campus."

221. See Alcohol Crackdown Moves Party U's Tougher Stance in Wake of

Recent Death Students Going Off Campus to Drink, THE INDIANAPOLIS STAR,

available at 1999 WL 3828819. Indiana University, after Pi Kappa Alpha fraternitypledge died from choking on his own vomit, has stepped up spot checks offraternities and is notifying parents of repeat offenders. Id.

222. See Bullard Charles, Frats Going Dry at U of I, DES MOINES REG. 1,

Aug. 25, 1998, available in 1998 WL 3222245. The eighteen fraternities atUniversity of Iowa voted unanimously to outlaw alcoholic beverages at theirparties. Id.

223. See generally, Leo Reisberg, Colleges Step Up Efforts to Combat Alcohol

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only permit alcoholic beverages on fraternity premises for students oflegal drinking age and third parties (non-fraternity members) must

224provide the alcoholic beverages. Some colleges notify parents of high-risk behavior,"' while other colleges have simply banned alcohol fromfraternity premises."'

Fraternities have expressed concern over their public image as a groupof binge drinkers and have tried to restore the original purpose of the•. . 227

fraternity-to promote brotherhood, scholarship and ethical citizenship.

Fraternities are trying to rebuild their image. Two of the nation's largest228fraternities have become alcohol free 2. In addition, fraternities have

229implemented alcohol awareness programs to combat binge drinking.States have implemented anti-hazing statutes and have demonstrated thatthey will use these statutes to hold students criminally liable.23°

Abuse, CHRON. HIGHER EDUC., UF Suspends Delta Chi Over Charges, ST.PETERSBURG TIMES, March 3, 1999 at IB, available in 1999 WL 3307542.(University of Florida suspends Delta Chi fraternity for sexual assault, violation ofalcohol beverage rule, and violation of hazing guidelines.) Id.

224. Id.225. See Leo Reisberg, When a Student Drinks Illegally, Should Colleges Call

Mom and Dad?, CHRON. HIGHER EDUC., December 4,1998, at A39.226. See Tiny Steps on Student Drinking, KAN. CITY STAR, Nov. 8, 1998, at

K2. The University of Missouri banned alcohol on the premise of fraternities iffreshmen lived in the house. Id.; UK's Rules for Greek Houses Move PartiesElsewhere, THE COURIER-JOURNAL (Louisville, KY), Oct. 5, 1998. University ofKentucky became the ninth university countrywide to enforce an alcohol-freepolicy for all fraternities on and off campus. Id.

227. U. of Michigan Fraternities to Re-Open Doors, U-WIRE, Apr. 2, 1998,available in 1998 WL 29558809. Fraternities are shifting their focus from alcoholand refocusing on grades, friendships and brotherhoods. Id.

228. See Kathleen Parker, Don't Let Your Sons Grow Up to Be Frat Boys,Some Fraternities and Sororities are Trying to Tackle Binge Drinking and RelatedIssues, GREENSBORO NEWS & REC. (N.C.) January 11, 1999, at A7. Sigma Nu,with 204 chapters, and Phi Delta Theta, with 180 chapters. Id.; UF Suspends DeltaChi Over Charges, ST. PETERSBURG TIMES, March 3, 1999 at IB. Report statesthat sixty-three national fraternities have asked their chapters to be substance freeby the year 2000. Id.

229. See Northwestern: Fraternity First to Take Part in Awareness Program, U-WIRE, Oct. 30, 1998, available at 1998 WL 20742981. Northwestern's Chapter ofSigma Phi Epsilon implemented an alcohol awareness program, which emphasizesTraining for Intervention Procedures (TIPS). Id.

230. See Gary Spencer, Private Action Allowed by Anti-Hazing Statute,N.Y.L.J., Feb. 2, 1999 at 1, col. 3. Twelve students and alumni members of ThetaChi Fraternity were charged with first-degree hazing after Oja, a seventeen-yearold student choked to death on his own vomit after being hazed.


CONCLUSION

Fraternity-related litigation has minimized the days where all

fraternities were defined by toga parties and drinking. Fraternities havebeen the objects of public scorn and million dollar lawsuits. As a result,national fraternities and colleges have worked together to implement

educational programs that promote responsible drinking and denouncehazing.

Colleges have taken an active role in supervising and controlling thefraternities and students on their campus. The notion in Bradshaw that

student autonomy and privacy meant that the university could not

exercise control over the student is no longer applicable in today'suniversity/student relationship. Colleges have implemented policies andprocedures which govern fraternity members and their behavior,

especially in the arena of hazing and drinking. Furthermore, colleges,rather than National Fraternities, are in the better position to govern andimplement these policies to prevent the tragedies that have occurred toooften on American campuses. Presumably the purpose of these policies isto protect students from fraternity-related injuries. Therefore, when the

university fails to enforce its policies and is aware that the policies are notbeing followed, the university should be subject to the same standard thecourts have applied to the National Fraternity when Ruben Hernandezwas killed in an automobile accident with Rayner.

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who is responsible for fraternity related injuries on

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